Updated July 27 to reflect the Secretary of Health's revised Order 2020-03.1 requiring the wearing of face masks in most public settings.

As the state reopens, one of the next questions is whether government officials have the authority to issue an order requiring people to wear masks when entering public buildings or public transit facilities. We believe the answer is “yes.”

The local board of health and local health officer have the authority to enact local rules and regulations as are necessary in order to preserve, promote and improve the public health, and to provide for the control and prevention of any dangerous, contagious or infectious disease (RCW 70.05.060; RCW 70.05.070). WAC 246-100-070 requires that local law enforcement enforce those orders.

For cities and counties the Washington State Constitution, Article XI, Section 11 provides broad authority to cities and towns to act in the event of an emergency, stating:

Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.

This is an affirmative grant of power. Counties, cities, and towns can rely on this constitutional provision to exercise local police powers so long as the subject matter is local, the city or town is acting in a reasonable way, and the action is consistent with state law. Examples of city and local health board directives are on our COVID-19 Local Emergency Declarations and Authority page under “Emergency Orders Regarding Face Masks.”

Special purpose districts such as hospital districts and water/sewer districts do not have general emergency powers. However, as managers of property we believe they have enough authority to place reasonable conditions on access to that property to protect their employees and visitors.

The Secretary of Health's Order 20-03.1 requires people statewide to wear face coverings whenever they leave their "dwelling units," with specific exceptions. The order allows local agencies to adopt more restrictive rules for face coverings.

All local agencies must continue to comply with the Americans with Disabilities Act when considering restrictions or conditions of access to public buildings and public transit facilities. Agencies should think about how they can provide reasonable accommodations if necessary.

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Updated May 14 for clarity.

The Washington State Constitution, Article XI, Section 11 provides broad authority to cities and towns to act in the event of an emergency, stating:

Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.

This is an affirmative grant of power and cities and towns can rely on this constitutional provision to exercise local police powers so long as the subject matter is local, the city or town is acting in a reasonable way, and the action is consistent with state law.

Another source of emergency powers is found in RCW 38.52.070, which allows cities and towns to bypass standard procedural requirements when entering into contracts and incurring obligations to combat an emergency (such as the COVID-19 pandemic).

The statute authorizes cities and towns to enter into contracts and incur obligations necessary to combat a disaster “without regard to time-consuming procedures and formalities prescribed by law (except mandatory constitutional requirements),” including:

• Waiver of budget law limitations;
• Competitive bidding and publication of notice; and
• Provisions pertaining to the following:
  • Performance of public works
  • Entering into contracts and incurring of obligations
  • Employment of temporary workers
  • Rental of equipment
  • Purchase of supplies and materials
  • Levying of taxes
  • Appropriation and expenditure of public funds.

RCW 38.52.100 authorizes the mayor or city manager to accept the following from private individuals and corporations (as well as from the federal government via the state): services, equipment, supplies materials or funds by way of gift, grant or loan for the purpose of emergency management.

Depending on your city classification, your city may have additional powers in your specific statutory provisions or your charter.

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In addition to their general police powers in Article 11, Section 11 of the Washington State Constitution, county governments have all the powers delegated to local authorities under chapter 38.52 RCW: Emergency Management. This includes the authority to:

• Enter into contracts and incur obligations necessary to combat the disaster, protecting the health and safety of persons and property, and providing emergency assistance to the victims of such disaster.
• Waive non-constitutional budget law limitations, requirements of competitive bidding and publication of notices, provisions pertaining to the performance of public work, entering into contracts, the incurring of obligations, the employment of temporary workers, the rental of equipment, the purchase of supplies and materials, the levying of taxes, and the appropriation and expenditures of public funds. RCW 38.52.070(2).
• Command the services and equipment of as many citizens as necessary. The persons and equipment will be treated as if they were registered emergency workers.

Additionally, counties can adopt a resolution under RCW 36.40.180 allowing for emergency expenditures. (Adoption must be by unanimous vote of commissioners present).

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Unlike counties, cities, and towns, neither the Washington State Constitution nor chapter 70.44 RCW (Public Hospital Districts) provide for a general grant of emergency powers to public hospital districts.

However, public hospital districts can take the following actions during an emergency:

• Participate in joint local emergency management organizations with other government entities and city/town/county comprehensive emergency management plans via a mutual aid or interlocal agreement pursuant to RCW 38.52.091 – see MRSC’s page on Local Government Emergency Planning for more on this topic.
• Waive competitive processes for contracting in the event of an emergency pursuant to RCW 39.04.280(1)(c) and (e) – see MRSC’s FAQ What emergency powers relate to contracting? for more on this topic.
• The legislative body can call an emergency meeting if the district needs to take expedited action to meet the emergency – this must truly by a specific emergency faced by the district, and not a general emergency faced by society as a whole. See MRSC’s FAQ What are the rules relating to scheduling a special/emergency meeting? for more on this topic.

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Unlike counties, cities, and towns, neither the Washington State Constitution nor Title 57 RCW (Water-Sewer Districts) provide for a general grant of emergency powers to water and sewer districts.

However, water and sewer districts can take the following actions during an emergency:

• Participate in joint local emergency management organizations with other government entities and city/town/county comprehensive emergency management plans via a mutual aid or interlocal agreement pursuant to RCW 38.52.091 – see MRSC’s page on Local Government Emergency Planning for more on this topic.
• Waive competitive processes for contracting in the event of an emergency pursuant to RCW 39.04.280(1)(c) and (e) – see MRSC’s FAQ What emergency powers relate to contracting? for more on this topic.
• The legislative body can call an emergency meeting if the district needs to take expedited action to meet the emergency – this must truly by a specific emergency faced by the district, and not a general emergency faced by society as a whole. See MRSC’s FAQ What are the rules relating to scheduling a special/emergency meeting? for more on this topic.
• With regard to waiver of fees and disconnection penalties, the Governor’s March 18, 2020 proclamation has called on all public utilities during the term of the statewide emergency declaration to:
  • Suspend disconnection of services due to non-payment; and
  • Waive late payments and fees or offer customer payment plans.

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The order of succession is not addressed in state law—it is a matter of local decision. Chapter 38.52 RCW vests emergency powers in the “executive head” of a county, city or town. RCW 38.52.010(12) defines “executive head” as:

• The county executive in charter counties with an elective office of county executive;
• The county legislative authority in the case of other counties;
• The mayor in those cities and towns with a mayor-council form of government where the mayor is directly elected; and
• The city manager in those cities and towns with council manager forms of government.

Cities and towns can also designate an executive head by ordinance.

Each local government may, as part of its emergency management plan or an emergency order, specify an order of succession in the event its executive head is unable to serve for any reason. For an example of a continuity of government plan, which addresses order of succession, as well as emergency levels of operation and prioritization of services, see the City of Kenmore Pandemic Emergency Continuity of Government Plan.

This question is part of the larger issue of continuity of operations, which MRSC addressed in our recent blog post Continuity of Operations During the COVID-19 Emergency.

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The Washington State Office of the Attorney General issued an Informal Opinion in 2006 address the issue of whether a local health department would have the authority to close a local jurisdiction, opining that it may but the better practice is to work with the jurisdiction in closing government buildings if public health necessitates closure.

The legislative body of a city sets the days and hours in which city offices are open. RCW 35A.21.070; RCW 35.21.175. RCW 36.16.100 grants the same authority to county legislative body (council or board of commissioners). Thus, the legislative body must take action to close agency offices, unless it has delegated this authority to the chief executive through code or local policy.

One possible exception is in counties where separately-elected officials may wish to close their departments. While we find no clear legal authority for them to do so absent a county-wide policy delegating this authority, case law and attorney general opinions indicate that the board of commissioners generally has quite limited authority to impose requirements regarding other personnel matters related to non-union county officers and employees hired by and under the control of other county elected officials, absent agreement with those elected officials. So, to the extent that the department heads do not exceed their budget authority, there is an argument that each of the independently-elected department heads have the authority to close their offices.

We recommend that agencies consult their attorneys on this issue and that they work together to provide a consistent standard that is easy for residents and employees to follow.

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Updated March 29 to re-frame question around whether local agencies are required to open their offices to the public, given the state's new re-opening plans.

No. The governor recognizes local control and the need for local governments to develop their own appropriate operational plans. The governor's office encourages local governments to use the Safe Start Reopening Guide for State Agencies in developing their own safe start plans.

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With strict social distancing policies in place in response to COVID-19, many local governments in Washington are moving quickly to implement telecommuting arrangements for employees who can work from home. Here are a few baseline considerations and best practices for telework, with some sample policies and additional resources.

Best practice tips for smaller entities without a Virtual Private Network (VPN), IT crew, or a way to remote:

For many local government employees, telework under the current circumstances may literally be limited to a telephone connection with their office and communication via email. In these instances it will be helpful to consider the following:

• Plan for regular check-ins during the day by phone or email.
• Create a phone tree for staff, including emergency contact information. Make sure you all know how the tree will work and who calls whom and under what circumstances.
• Free conference calling services include freeconference.com and Google Hangouts. Popular web-based video conferencing tools include Zoom, Skype, Google Hangouts Meet, and GoToMeeting.
• If the current circumstances continue, your organization may want to consider using a system like gsuite for instant messaging, video chat, and document creation, management, and sharing. It offers tiered pricing depending on your organization’s size, and has a phone app as well.

Best practice tips for larger entities with IT staff and remote capabilities:

• Make sure you have adequate remote connections to your system.
• Provide appropriate tech support. For many employees this will be their first time telecommuting and they will have a lot of basic software and connectivity questions. This may mean your tech support will need additional support.
• Have a written policy that addresses both emergency and non-emergency situations and is clear about expectations.
• Encourage the use of instant messaging systems that can be used by team members to check in and stay connected.
• Make sure you know how and who to contact in case of emergency, especially where a large portion of your staff are remote.

Telework policy tips:

Here are points to consider when forming policies and guidelines:

• References to any human resources policies, work guidelines, and/or additional requirements employees are expected to follow;
• Agreed upon schedule of telework: include days and hours;
• A formal agreement with employees;
• Expectations of availability during core business hours, including how the employee will be expected to communicate, and how they will conduct meetings with other employees and clients (onsite or via phone/video?);
• Requirements for daycare or dependent care during working hours; and
• Who has the right to suspend or end a telecommuting agreement.

Cybersecurity risks for telecommuting

A big problem with remote work is security. On-site computers work on secure networks, but security off-network is questionable. Here are some tips:

• Make your agreement explicit if you don’t want employees on public WiFi, and make sure they know what public WiFi and unsecured networks are.
• Alert employees to an expected increase in phishing attempts. Malicious cyber actors may increase phishing emails targeting teleworkers to steal their usernames and passwords. Be aware that there are cybercriminals capitalizing on this emergency, including phishing emails purporting to be from the CDC.
• VPNs and Remote Desktop Connections pose some risk; check with your IT staff to make sure patches and updates are current.

For examples of telecommuting policies and agreements, including some temporary agreements specific to the current COVID-19 crisis, see our Telecommuting page.

Related resources:

• Quick Steps to Prepare a Remote Work Policy for Your Local Government, ICMA Blog, March 18, 2020
• How to Create an Effective Teleworking Program, SHRM, April 2018
• IT Practices and Procedures to Consider in Cases of Extended Telecommuting, ICMA Blog, March 12, 2020
• Managing Employees You Can’t See, ICMA, Public Management, April 27, 2018
• Teleworking Guidance, Best Practices,Sample Policies, and Cybersecurity, UNC School of Government, March 2020

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Quarantines are typically imposed by the Governor, or the local Board of Health, not by cities. However, local governments do have broad powers to protect public health. For instance, an old Seattle ordinance related to communicable diseases (quarantine exposure to smallpox) was upheld by the Washington Supreme Court:

There is no doubt and it is not denied that the city had the power to enact the ordinance here in question and had the power to create health and quarantine officers, as it has done, by the charter and ordinance provisions. [City of Seattle v. Cottin, 144 Wash. 572, 576, 258 P. 520, 521 (1927)]

Therefore, while it appears under this 1927 case that cities do have the authority impose a quarantine, the better practice is to coordinate with the county board of health on issuance of a quarantine.

For more information on quarantine authority, see "Federal and State Quarantine and Isolation Authority," Congressional Research Service Report for Congress (October 9, 2014).

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Although the local health officer does have broad authority to “[t]ake such action as is necessary to maintain health and sanitation supervision” under RCW 70.05.070(2), there is no specific authority granted to the local health officer or other local government to prohibit resource and product hoarding.

Local governments should disseminate information over their communication channels discouraging resource and product hoarding – a good example of this is the state Department of Health’s press release telling Washingtonians to Leave some for your neighbors: Don’t buy more than you need.

For their part, retailers have been imposing purchase limits for high demand items; local health officers should be in direct communication with local retailers on this issue. And, on a related note, the State Attorney General’s Office is investigating complaints of price gouging related to COVID-19, so any price gouging should be reported to the AGO.

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Updated June 25 to include information about enforcing the state Secretary of Health's orders, following the issuance of Order 2020-03 requiring face masks to be worn in most public settings.

With regard to local and state health department orders issued under RCW 70.05.060 and 70.05.070, yes. WAC 246-100-070 provides as follows:

Enforcement of local health officer orders.

(1) An order issued by a local health officer in accordance with this chapter shall constitute the duly authorized application of lawful rules adopted by the state board of health and must be enforced by all police officers, sheriffs, constables, and all other officers and employees of any political subdivisions within the jurisdiction of the health department in accordance with RCW 43.20.050. [emphasis added].
(2) Any person who shall violate any of the provisions of this chapter or any lawful rule adopted by the board shall be deemed guilty of a misdemeanor punishable as provided under RCW 42.20.050.
(3) Any person who shall fail or refuse to obey any lawful order issued by any local health officer shall be deemed guilty of a misdemeanor punishable as provided under RCW 70.05.120.

RCW 43.70.130(7) gives the state Secretary of Health the same authority as local health officers during an emergency. So, the statute requires that the Secretary’s orders must be enforced.

With regard to the Governor’s orders, the law is not as clear on enforcement. While local law enforcement have the authority to investigate violations of the Governor’s orders whether they are obligated to do so is not as clear. RCW 38.52.110(1) provides for the commandeering of local law enforcement, but the Governor’s orders do not clearly invoke this authority. RCW 38.52.150 does provide that it is “the duty of every organization for emergency management” and “the officers thereof to execute and enforce” the orders of the Governor. However, the definition of “local organization for emergency services or management” in RCW 38.52.010(19) does not appear to automatically encompass local law enforcement.

Nothing in these statutes affects the traditional discretion afforded to local law enforcement and prosecuting attorneys.  

On March 30, 2020, Governor Inslee issued guidance for enforcement of the “Stay at Home” order. While violation of the order is still a criminal offense, law enforcement agencies are prioritizing education over criminal penalties for individuals and businesses. For businesses, the Governor’s office points out that local governments and state regulatory agencies may take additional enforcement action, such as citations, suspension notices, revoking someone’s business license, potential criminal charges, and even a Consumer Protection Act violation action.

For an example of local enforcement actions, see the Spokane Regional Health District enforcement process for non-essential businesses that remain open. This three-phase strategy for enforcing the governor's stay-at-home order, with supporting legal documents and instructions to law enforcement officers, is initiated by complaints to the county sheriff's office, which forwards the complaint to the appropriate local law enforcement agency with primary jurisdiction where the business is located. If the business is determined to be non-essential, it will be asked to close immediately. If the business does not comply and further complaints are received, the enforcement process can escalate to an injunction/temporary restraining order closing the business.

The state has also established a website for reporting violations of the Governor’s order.

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Special thanks to Pam Loginsky, Staff Attorney, Washington Association of Prosecuting Attorneys, for assistance with this topic.

RCW 43.06.220 gives the governor the authority to issue orders during a proclaimed emergency. RCW 43.06.220(5) makes willful violation of those orders a gross misdemeanor. The statute also provides that, after the emergency has been proclaimed, malicious destruction of property, disorderly conduct, refusing to leave a public way or property when ordered, all carry criminal penalties. (See RCW 43.06.230, 43.06.240, and 43.06.250.) Persons 16 years or over may be prosecuted as an adult for certain violations under this chapter (RCW 43.06.260).

RCW 70.05.120(4) makes violations of certain state and local health department rules or orders a misdemeanor. It also makes evading or breaking quarantine a misdemeanor.

Who can be charged?

Any natural person who violates the order. Also, an entity (a business organized under Title 23, 23B, or 25 RCW) that violates an order can be charged with a crime (RCW 10.01.070). An entity is subject to fines of up to $50,000 for a misdemeanor violation and up to $250,000 for a gross misdemeanor violation (RCW 10.01.100).

Who investigates?

Local law enforcement agencies have the authority to investigate violations occurring in their jurisdiction. And, as appropriate, to issue citations, arrest, or refer violations to the prosecuting attorney. (The Attorney General has opined that the Sheriff and city police have concurrent jurisdiction over felonies and violations of state law within incorporated cities (AGO 1990 No. 4, AGO 1961-62 No. 25)).

As with all gross misdemeanor and misdemeanors, a law enforcement official can only arrest (without a warrant) if the offense is committed in the officers’ presence, unless one of the exceptions in RCW 10.31.100 applies.

Where does it get filed?

If the city or town has adopted the specific state laws authorizing emergency orders by reference, or adopts an ordinance making violation of these types of emergency orders a violation in the City’s code, it can be filed by the city prosecutor in its local court. Otherwise, it should be referred to the county prosecutor.

City and county prosecutors should verify that the case is filed in the correct local court. Was it created under chapter 3.30, 3.50, or 35.20?

Law enforcement agencies should coordinate with their emergency management team and surrounding jurisdictions on their protocol for detaining persons who may be contagious. Agencies might consider a consolidated facility in order to reduce staffing requirements and risk of contagion.

Finally, law enforcement agencies should seek guidance from their police legal advisor and/or prosecutor.

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The Open Public Meetings Act recognizes the necessity to call an emergency meeting if there is a need for expedited action to meet the emergency. 42.30.070; RCW 42.30.080(4). The emergency meeting can be held at a site other than the typical meeting site, and the 24-hour notice for a special meeting is not required. The governing body should state on the record the reason for the short notice – e.g., coronavirus and the need to get policies in place and respond to the emerging situation.

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Updated March 29 to reflect the fact that local public health officers may have adopted stricter standards than the state for in-person meetings.

The Governor’s Open Public Meetings Act and Public Records Act Proclamation 20-28.15 extends Proclamation 20-28.14, which allows an in-person public meeting component (in addition to a mandatory remote component), consistent with the guidance for business meetings within the Miscellaneous Venues guidance. The latest proclamation is in effect through the duration of the emergency, or until rescinded.

Miscellaneous Venues guidance has been updated to allow for in-person business meetings in Phases 2 and 3 of the state's reopening plan, as long as they comply with the capacity and social distancing requirements for each phase. (In-person business meetings are prohibited in Phase 1.) For more information, see our blog post COVID-19 and Local Governments: Where Things Stand as of March 22, 2021.

(Your local public health officer may have adopted stricter standards than the state for conducting in-person meetings, so we recommend checking with the local health department to determine whether any additional limitations apply.)

You can see the development of the statewide OPMA proclamations at the Open Public Meetings Act section of our COVID-19 Governor’s Proclamations and State Guidance page.

The Proclamation specifically waives certain notice requirements, such as those in RCW 42.30.070 which allow the presiding officer to move the regular meeting place in an emergency.

MRSC recommends that you provide notice of the new location (or remote access options) by as many means as is practicable (website, notification to local media). The Proclamation also waives the requirement in RCW 42.30.080(2)(c) that requires notice of a special meeting to be physically posted. The requirement for posting notice of a special meeting at least 24 hours before the time of the meeting (to news organizations and on your website if applicable) is still in effect. Again, we recommend you publicize the change in time as widely as is practicable.

What if I had a public hearing scheduled?

Assuming you’d properly noticed the meeting under whichever statute required the hearing, MRSC believes you can continue that meeting without having to follow the full procedures required for the original notice.

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Updated June 2 to reflect Proclamation 20-28.4, which removed the prohibition on taking “action” at meetings subject to OPMA.

Not anymore. The Governor’s emergency Proclamation 20-28, issued March 24 and subsequently extended several times, prohibited agencies from taking “action,” as defined in RCW 42.30.020, unless those matters were necessary and routine or were necessary to respond to the COVID-19 outbreak and the current public health emergency.

However, while Proclamation 20-28.4 (issued May 29) extended most of the OPMA prohibitions and suspensions through June 17, 2020, including the requirement that meetings be held remotely, it removed the prohibition on taking “action.” Effective June 1, agencies may resume taking “action” at meetings.

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Updated February 11 to remove references to whether in-person meetings are currently allowed under the state's re-opening plan, which is addressed in a separate FAQ.

If your jurisdiction is conducting remote public meetings and public hearings in accordance with the governor's emergency proclamations, you must provide a way for all attendees to hear everything that goes on during the meeting, and remote attendance options must include a telephonic option even if video or other online streaming options are also available. A jurisdiction cannot opt to do only video or other internet-based streaming, but must provide a call-in number so that participants can hear the meeting. If your local rules provide for public comment, you must allow people participating remotely to provide that comment. Some online platforms have a “raise your hand” function. Some agencies are suggesting people submit their comments by email before or during the meeting.

Care should also be taken to make sure your meetings are compliant with the Americans with Disabilities Act (ADA). Carefully research the technology that you select. Most technologies have specific accessibility features. For instance:

• Zoom: Accessibility Features
• GoToMeeting: What accessibility features are available in GoToMeeting?
• Skype for Business: Make your Skype for Business meetings more accessible to people with disabilities

For teleconference lines, you may need to have a real-time transcriber for the hearing impaired on the call if requested. (See the CDC’s 2010 guidance on Making Meetings Accessible.) Be sure your notice includes a contact person for accommodation requests.

Agencies should consult with their legal counsel as to how best to proceed depending on the specific situation. Also, please see the Attorney General’s Office’s guidance on conducting public meetings during COVID-19, which has been updated several times to reflect the governor's proclamations and subsequent extensions and amendments.

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Pretty much the same way you normally would. The presiding officer announces that they are going to adjourn into executive session, states the purpose, and the time they will return. Use the Executive Session Script, as modified for the technology you’re using.

What comes next depends on the technology you’re using. Depending on your conferencing software, the governing body can switch to a different call/session, while leaving the public meeting call/session open. We recommend a staff member stay on the original call/session to remind other attendees that the governing body will reconvene. The presiding officer should ask each person attending the executive session to confirm that no one who was not invited to the executive session is either physically present or on the line.

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With statewide social distancing requirements now in place, MRSC is recommending that local agencies use remote meeting technology tools to conduct community meetings that will exceed current group size limitations.

Basic technology options include telephonic conference calls and/or use of web-based video conferencing software and platforms that allow members of the legislative body and the public to attend meetings remotely.

Free conference calling services include freeconference.com and Google Hangouts. Popular web-based video conferencing tools include Zoom, Skype, Google Hangouts Meet, and GoToMeeting. Use of live polling (for example, Slido) during remote meetings may also be worth considering as a way to engage with participants. (This list is for informational purposes only and is not intended as an endorsement of these services.)

Quick Tips

Consider the following quick tips as you select and implement remote community meeting technologies:

• Test the technology ahead of time to ensure that all systems are “go” by the time your meeting is scheduled to start.
• Video conferencing provides the best experience, but have an audio dial-in option available for back-up.
• Make sure that the platform you use enables the public to listen in and to participate during times like the public comment period.
• You will also need a method to mute and unmute (usually included in the software user controls) people so that you won’t be interrupted during agenda items that aren’t open to public comment.
• Remote meetings with multiple participants can be tricky so be sure to distribute meeting participation rules in advance and enforce them.
• Some vendors, including Microsoft, Google, Cisco and LogMeIn, are making some of their chat and video-conferencing services free in response to the spread of the coronavirus.
• Use this opportunity to become more acquainted with video-conferencing technology as a community engagement tool.

Related Resources

• Working on Council Guidelines? What About Remote Meeting Attendance? MRSC Insight, February 26, 2020 (includes sample policies)
• Shoreline City Council Remote Public Comment Sign-In Form
• Cambridge, MA, Zoom Meeting Instructions
• COVID-19: Ultimate Guide to Free Video Conferencing & Collaboration, UC Today, March 16, 2020
• Public Meetings in the Time of Covid-19, Rob Karlinsey, ICMA Blog, March 13, 2020
• What It Takes to Run a Great Virtual Meeting, Harvard Business Review, March 5, 2020
• Coronavirus prompts collaboration tool makers to offer wares for free, Computer World, March 18, 2020

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Updated on February 12 to change the previous guidance and indicate that there is probably no longer sufficient justification to indefinitely delay a land use hearing.

Previously, MRSC said that the governor’s emergency proclamations likely provided a legal basis for postponing or continuing a land use hearing while the emergency is in effect. However, Phil Oblrechts, a frequent presenter at MRSC’s land use seminars and Hearing Examiner for many cities and counties, recently suggested that at this point in the emergency that there is probably no sufficient justification to indefinitely delay a land use hearing in light of successful use of online platforms for quasi-judicial hearings. Any shorter-term delays or postponements should be discussed with your agency attorney.

Additionally, with most regions in Washington now moving to Phase 2, state guidance would allow an in-person hearing provided capacity limits and all other required safety measures are met.

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Many local governments have begun providing payments via an electronic payment system of some type. Financial software systems have been providing this feature at an increasing rate over the years and it is quickly becoming the standard in many larger systems. In addition, a local government’s bank may also offer a remote check printing service as well. In this case, the local government provides their bank an electronic file containing the data for the checks that need to be printed and distributed. The bank may provide for these payments through an electronic means available to them, or actually print the checks and mail them on behalf of the government. This service is offered by most major banks and can be arranged for through your banking partner.

Alternatively, the entity could provide payment with a purchasing card in those instances where the entity has previously approved the use of purchasing cards for payment of accounts payable claims. This is also a practice that is seeing increasing use for a variety of other reasons. See our Credit Card Use Policies page for more information.

It may be necessary, or at least a “best practice,” to have the authority for the use of an electronic signature, or some other alternative to a “wet” signature authorized by your policy board. This authority can describe the conditions and minimum procedural requirements for the use of an electronic, or alternative means, approach to a traditional physical signature.

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For information on electronic signatures, see our April 13 blog post Using Electronic Signatures During Emergencies.

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Updated May 7 to reflect the extension of the emergency OPMA provisions through May 31.

There are no specific signature requirements in state law regarding meeting minutes. Signature requirements for minutes are usually a matter of local rules or policies, so an agency’s governing body could waive such requirements, especially in an emergency.

Resolutions are typically signed by the chair of the governing body, but again, state law does not impose specific requirements on who signs a resolution or how it should be signed.

State law does address signatures on ordinances for some types of cities. For example, RCW 35A.12.130 requires that in mayor-council code cities, ordinances be signed by the mayor and attested to by the city clerk. For other types of cities, towns, and counties for which there are no specific signature requirements, a common practice is to have ordinances signed by the chair or presiding officer of the governing body, approved as to form by legal counsel, and attested to by the clerk.

Although the Governor’s Proclamation 20-28 (extended most recently through May 31 by the state legislative leadership and Proclamation 20-28.2) prohibits meetings at physical locations, an individual with signature authority could constitute essential personnel for the purpose of signing documents that are necessary during the emergency. Therefore, an individual could go to the agency’s offices to sign necessary documents, even if a public meeting cannot be held, if no alternatives are available.

Another option, which would work for certain types of documents, is to provide phone or email authorization to sign documents. For example, the chair of a governing body could ask the clerk to sign a resolution and the clerk would write the following in the signature line: “[Clerk signature] for [print name of Chair] by [email or phone] authorization on [enter date].”

Electronic signatures are also an option for agencies that have the technology to use them. For many documents you can use some form of electronic or facsimile signature. State and local agencies are authorized to use and accept electronic signatures under chapter 19.360 RCW. For the use of “autopen” or signature stamps, look at RCW 39.62.020.

MRSC recently published a blog post on this subject: Using Electronic Signatures During Emergencies. (Also see our older articles on Electronic Signatures, Submissions, and Bids for Local Governments and Electronic Document Transmittals and Options for Electronic Signatures.)

Ultimately, an agency should consult with its legal counsel to determine what (if anything) constitutes an appropriate substitute for an ink signature.

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First of all, any purchase, public works project, or service for which a competitive process is waived must be an explicit necessity and directly related to the emergency.

That said, the competitive bidding exemptions of RCW 39.04.280 could apply in this situation – in particular, waiving the normal competitive bidding procedures for emergency purchases, emergency public works, or (potentially) purchases related to special market conditions. For more information, see our Competitive Bidding Exemptions page.

In addition, RCW 39.80.060 provides an exemption for emergency architecture and engineering (A&E) contracts.

There are no statutory requirements for purchased services or (for most agencies) personal services, so agencies should follow their own internal procedures. For port districts, RCW 53.19.020-.030 provides an exemption for emergency personal service contracts.

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Updated April 16 to provide minor clarifications regarding the "Stay Home, Stay Healthy" order and opening bids remotely.

While the governor's "Stay Home, Stay Healthy" order is in effect or while the public office is closed, public bid openings should be held remotely. If the legislative body is involved in the bid opening or contract approval, the agency should review the Attorney General's Office general guidance regarding coronavirus and the Open Public Meetings Act for how to properly hold a remote meeting of the governing body. (Also see the AG's Supplemental Guidance issued March 26 and subsequently extended through May 31 to reflect Proclamation 20-28 and its extensions.)

Some agencies are waiving the competitive process through an emergency declaration (RCW 39.04.280). There may be a portion of the competitive process that you can alter/cancel during the emergency, such as the sealed bid requirement.

If you have a bid program that allows electronic bid receipt and which holds bids as electronically sealed until a designated release time, you might default to this process for all bids, or waive the requirement for hard copy bids under an emergency declaration and receive only electronic copies per some other instruction.

Some agencies are having bids placed in drop boxes, delivered by carrier, or by setting an appointment to drop off documents. You should discuss appropriate options with your legal counsel.

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Updated February 3 to reflect the extension of the five-day response waiver for the duration of the emergency except for requests received electronically.

For public records requests received electronically: the 5-day response deadline was reinstated beginning May 12, 2020.

For public records received by non-electronic means: the 5-day response deadline has been waived for the duration of the emergency, or until further amended or rescinded. Below is a more detailed explanation.

On March 24, 2020, the Governor issued Proclamation 20-28, temporarily waiving the requirement in RCW 42.56.520(1) to response to a request for public records within five business days.

Specifically, the Governor waived the following language in BOLD:

Responses to requests for public records shall be made promptly by agencies, the office of the secretary of the senate, and the office of the chief clerk of the house of representatives. Within five business days of receiving a public record request, an agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives must respond in one of the ways provided in this subsection.

On May 11, 2020, the legislative leadership agreed to extend this waiver until midnight on May 31, except for public records requests that are received electronically (recognized by the Governor in Proclamation 20-28.3). All public records requests received electronically on or after May 12, 2020 must be responded to within five business days. The waiver for non-electronic records has now been extended for the duration of the emergency (or until amended/rescinded) by the state legislature (Senate Concurrent Resolution 8402) and Proclamation 20-28.15.

The extension letter does not define “electronically” but a conservative interpretation is that if you receive a PRA request by email, online portal, or e-facsimile, you must respond within five business days of receipt.

If you receive a request by physical delivery, including paper fax, mail, or private parcel delivery (UPS, FedEx), you are still required to “promptly” respond to the request with a letter that includes one of the allowable responses from RCW 42.56.520(1), but you are not required to do so within five business days.

However, agencies that have the staff and the technology for remote work should still try to respond within five days.

Local governments should prominently post on their website and/or communicate to the public through other means that the five-business day response time has been suspended by the proclamation for non-electronic requests but will make all feasible efforts to respond promptly to requests for records. You may also want to update your website and social media pages to clarify how to submit a public records request. Since most agencies have a policy of not accepting public records requests through their social media pages, those pages should clearly direct requestors to the correct place.

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Updated February 3 to reflect the extension of the emergency PRA provisions for the duration of the emergency.

On March 24, 2020, to prevent “bringing people in contact with one another at a time when the virus is rapidly spreading,” the Governor issued Proclamation 20-28, temporarily waiving certain requirements of the Public Records Act that would normally require in-person contact between the public and the local agency staff.

Specifically, the Governor waived the following language in BOLD:

RCW 42.56.080(2)
Agency facilities shall be made available to any person for the copying of public records except when and to the extent that this would unreasonably disrupt the operations of the agency. Agencies shall honor requests received in person during an agency's normal office hours, or by mail or email, for identifiable public records unless exempted by provisions of this chapter.

RCW 42.56.090
Public records shall be available for inspection and copying during the customary office hours of the agency … for a minimum of thirty hours per week, except weeks that include state legal holidays, unless the person making the request and the agency … agree on a different time.

RCW 42.56.100
Agencies shall adopt and enforce reasonable rules and regulations …consonant with the intent of this chapter to provide full public access to public records.

These waivers have now been extended for the duration of the emergency (or until amended/rescinded) by the state legislature (Senate Concurrent Resolution 8402) and Proclamation 20-28.15.

What this means is that local agencies are still required to accept and process public records requests, but only by mail or email or other non-in-person means. Agencies are not required and should not accept any in-person requests for records.

Further, requests for in-person inspection of records should not be allowed while the Proclamation is in effect, and any previously scheduled appointments should be cancelled. The agency should discuss with the requestor potential alternatives to providing physical access to the records, such as:

• Schedule to provide access to the records once the Proclamation and other “Stay-at-Home” orders are lifted;
• Invite the requestor to withdraw the request and resubmit later;
• Provide records in electronic form and/or paper copies that are then sent through the mail; or
• Other solutions that still comply with any of the Governor’s Proclamations and Orders.

The agency should also explore alternate means to receive payment for copies of records such as via mail-in check or credit/debit card over the phone or through a secure website.

Local governments should prominently post on their website and/or communicate to the public through other means that in-person requests for records will not be accepted and that requests for in-person inspection of records will not be allowed as long as the Proclamation remains in effect. If the agency has not done so already, it should post how to remotely submit requests and communicate with the Public Records Officer.

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Updated February 3 to reflect the extension of the five-day response waiver for records received through non-electronic means for the duration of the emergency.

The public records process is not the most effective or efficient method of transmitting this type of information to the public, but once a records request is filed, it needs to be processed as such under the Public Records Act (PRA).

Normally, under RCW 42.56.520, when a request is received, an agency is required to do one of the following things within five business days:

1. Provide the records requested;
2. Provide a link to the specific records requested on the agency’s website;
3. Acknowledge receipt of the request and providing a reasonable estimate of the time necessary to respond;
4. Acknowledge receipt of the request and requesting clarification for a request that is unclear;
5. Deny the request.

The PRA does not require an agency to take action on a faster timeline and the state legislative leadership (recognized by the governor in Proclamation 20-28.2) extended the five-day response waiver through May 11, 2020. On May 11, the state legislative leaders further extended the five-day waiver through May 31, but not for requests received electronically (recognized by the Governor in Proclamation 20-28.3). All public records requests received electronically on or after May 12, 2020 must be responded to within five business days.

The five-day response waiver for non-electronic records requests has now been extended for the duration of the emergency (or until amended/rescinded) by the state legislature (Senate Concurrent Resolution 8402) and Proclamation 20-28.15.

The PRA does not require an agency to prioritize certain types of requests or requestors over others. At the same time, “slow-walking” a response or other unreasonable delay could be the basis of sanctions in the future.

MRSC encourages agencies to be proactive in sharing information on COVID-19 measures with their employees, unions, and the public on an ongoing basis. Sharing that information should occur separately from the PRA response process since the PRA is not structured or designed to address communications on emergent situations.

You will likely receive many requests for such records during the course of this emergency situation. If your agency is capable, consider sharing relevant documents on your website so you can direct requestors to the already available information.

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An agency must make a reasonable estimate of time for the production of records.

The reasonableness of an estimated response time may depend on a number of factors including the number of records requested and the difficulty in gathering and reviewing the requested records. If an agency is in the early stages of responding to a request, the agency should take factors such as the ability to search for records, closure, or reduced capacity due to telecommuting into consideration in identifying an estimated production date. If an agency is further along in responding to a request, an agency may extend its estimate of time for the production of records when more time is needed than initially anticipated.

If an agency is challenged on the reasonableness of an agency’s time estimate, or an extension, the burden of proof is on the agency to show that its estimate, or extension, was reasonable. While the PRA does not require an agency to provide a written explanation of its time estimate, good communications benefit both the requestor and an agency. Consider providing information to the requestor about the difficulties the agency is facing in processing a pending request.

Keep in mind the operative word for the estimate of time is “reasonable.” Each request should be considered separately taking into account the factors and issues involved in responding to each request. An agency should not use a standard estimate for every request.

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Your ability to process requests remotely will largely depend on what, if any, technology solutions your agency has adopted. Please see MRSC PRA and Records Management Tech Guide for a comprehensive review of PRA technology used throughout the state. Given the possibility that this situation may continue for many months, it may be worth considering investing in technology that assists along these lines.

At the very least, you should have a system set up where you can receive requests by mail or other electronic means and provide the response letter required by RCW 42.56.520(1) as soon as feasible.

Keep in mind, it will likely be difficult to search paper files for responsive records if your agency is on extended telecommuting and non-essential personnel are subject to a "Stay-at-Home" order. Consider providing electronic records in the first installment(s) and then provide an estimate of when paper files may be available for a later installment. Be sure to document your search efforts and communicate with the requestor why it may take longer to search for certain records.

Further, if you have any pending requests and upcoming deadlines for promised installments, now is a good time to communicate with the requestors to let them know you will likely not meet the original proposed deadline and provide a reasonable estimate when the records may be available.

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RCW 43.09.240 reads in part:

Every public officer and employee, whose duty it is to collect or receive payments due or for the use of the public shall deposit such moneys collected or received by him or her with the treasurer of the local government once every twenty-four consecutive hours. The treasurer may in his or her discretion grant an exception where such daily transfers would not be administratively practical or feasible as long as the treasurer has received a written request from the department, district, or agency, and where the department, district, or agency certifies that the money is held with proper safekeeping and that the entity carries out proper theft protection to reduce risk of loss of funds. Exceptions granted by the treasurer shall state the frequency with which deposits are required as long as no exception exceeds a time period greater than one deposit per week.

All local government entities whose duty it is to collect or receive payments may make exceptions to the daily deposit schedule if granted by the treasurer.

For many special purpose districts, the county treasurer is the treasurer for the district. RCW 36.29.010 reads:

Money received by all entities for whom the county treasurer serves as treasurer must be deposited within twenty-four hours in an account designated by the county treasurer unless a waiver is granted by the county treasurer in accordance with RCW 43.09.240.

In all cases – whether cities, counties or special purpose districts – the requirement for daily deposits may be granted an exception to this requirement by the treasurer. If daily deposits are administratively not practical or feasible a written exception can be requested and/or granted by the treasurer. However, it’s important to note that the statute requires at a minimum of weekly deposits.

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Chapter 67.28 RCW provides the basis for distribution of lodging tax funds. RCW 67.28.1816 allows the funds to be distributed to convention and visitors bureau or destination marketing organizations for tourism marketing; special events and festivals; operations and capital expenditures of tourism-related facilities owned or operated by a the municipality or a public facilities district; and operations of tourism-related facilities owned or operated by nonprofit organizations.

The planning, organization, and preparation for festivals and events are all allowed expenditures for the marketing and operations of special events and festivals (RCW 67.28.1816(1)(b)). The current state of emergency that has been declared resulted in the cancellation of many events but for many of these cancellations there are costs that could still be still be covered. These are unprecedented times and the emergency declaration does not eliminate expenses already incurred for marketing and other operational costs.

Cities, towns and counties will have to assess individual circumstances of those distributions associated with a festival or event. In many cases the direct costs associated with cancellation would be considered an allowable cost, such as non-refundable deposits on facilities, permit fees, and other event organization costs. While considering the costs that are still eligible, you will also want to ask whether the event organizer purchased insurance that would allow for the recovery of some of these operating costs when an event is cancelled.

For events and festivals that will be occurring in the future it will be difficult to estimate whether those activities will continue to be held. Communication with the event organizers will be an important component of monitoring and oversight. Will the event/festival be postponed to a later time in the year, or will it be cancelled altogether? Should the distribution of lodging tax monies be refunded or applied to the re-scheduled event? If the event is not being rescheduled should you consider applying current year distributions to next year’s event. The important factor will be your oversight and internal controls to ensure that lodging tax distributions have been utilized appropriately, whether that is now or in the foreseeable future.

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Both the use and the dollar amount of lodging tax allocations that have been approved by the legislative body may be changed, but the use of funds must always be consistent with RCW 67.28.1816 and as defined in RCW 67.28.080. Lodging tax funds are restricted resources that must be used according to state statute, regardless of the pandemic and its attendant financial challenges. Limits on the use of these restricted resources have not been waived by any of the Governor’s proclamations to date.

Changing the use or dollar amount of lodging tax awards

As an example, let’s say your agency has awarded the local chamber of commerce $10,000 in lodging tax funds for events, but the events have been cancelled and the chamber now wants to use the money for operations. To avoid potential audit issues for local governments, MRSC tends to take a conservative approach, so the most transparent option for either a change in funding amount (see a 2016 informal opinion from the Attorney General’s Office) or use would be to follow the procedure and timeline in RCW 67.28.1817(2) outlined below.

1. Applicant or legislative body proposes a revised amount or the revised use of previously awarded funds.
2. Lodging Tax Advisory Committee (LTAC) reviews the request, makes comments on the proposal, and submits it to the legislative body.
3. Legislative body approves the requested amount/use or awards a different amount (or a different use). The legislative body’s decision is final.

(If your municipality has a population below 5,000, there is no requirement for an LTAC, and the entire awards process may be handled by the legislative body.)

Rescinding lodging tax awards for cancelled events

One way to address this could be for the legislative body to pass a resolution rescinding all awards for which a contract has not been executed. If funds have not been disbursed yet and the recipient intends to hold the event in the next fiscal year or next award cycle, the applicants should reapply for the funds for that period. If a recipient requests reimbursement for expenses already incurred, the municipality is under no obligation to reimburse those expenditures if no contract has been executed.

 For those cases in which your agency has executed contracts, each contract should be reviewed by your agency’s attorney and other relevant staff for next steps. MRSC cannot provide detailed advice on executed contracts.

Additional tips

• Communicate! Let your recipients and your LTAC (if applicable) know what you’re planning and give them time to comment.
• Keep a good paper trail! If you’re disbursing partial funds for reimbursement of a cancelled event, make sure you document the reimbursement, get all the back-up paperwork for the expenditures, and clearly state the reasons for the cancellation, date of cancellation, and any other information about the circumstances that may be relevant.
• Be mindful of your budget appropriations timeline. If you are on an annual budget, the funds will need to be appropriated in the next budget. This is another good reason to rescind awards for cancelled events and go through the application process in the next budget year.
• It is important to follow your municipality’s established procedures and existing statutes despite the complications from the pandemic.

For a full discussion of lodging taxes, see our Lodging Tax webpage. MRSC is not the final authority on lodging tax use and can only offer an opinion. The State Auditor’s office can give a final determination via their helpdesk.

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In response to the pandemic, local governments could find themselves dealing with increased expenditures – such as overtime for frontline personnel, technology-related costs for working remotely, and other unanticipated costs – as well as disruptions in the receipt of certain revenues. Many local agencies have deferred certain types of payment due dates, late fees, and fines. Other revenues related to business activity could be impacted by the requirement to suspend many business operations. Sales taxes and local business taxes (B&O, business licenses, etc.) could be significantly impacted depending on the length of the crisis. Several counties have extending the due date for first-half property taxes that will have impact on all jurisdictions that collect. What are some options for addressing cashflow?

Use of Reserves: Some governments may find that they will need to rely upon their reserves. In some cases, these reserves are part of their operating funds themselves and appropriated as part of their routine budget process. Use of these reserves may not require any additional action. In other cases, the reserve is part of the operating fund, but not appropriated as yet. That may require a budget amendment to authorize the use of these funds. Other instances involve a reserve that is held in a special fund (such as a cumulative reserve fund). In those cases, the government will need to determine if that fund has been appropriated for expenditure as yet or not.

Interfund Loans: The government may find insufficient cashflow in one fund while having sufficient idle funds in a different fund of the entity. A loan from one fund to another is permissible but requires prior approval by the legislative authority. The State Auditor’s Office provides good guidance on interfund activity, including interfund loans in its BARS manuals (cash and GAAP). The government may be able to provide a “blanket” authority for interfund loans to staff in response to temporary cashflow concerns. However, limitations, conditions, and reporting should be included in any “blanket guidance.” You can find several good examples on the MRSC website.

Short-term Loans: A government may find it has insufficient resources in any fund to address cashflow needs. In that case, you may need to seek a short-term loan from a lending institution. MRSC has previously published a variety of resources that may prove helpful in thinking through this issue. They include: Debt Management Policies, Types of Municipal Debt (which has a section on short-term debt), and General Obligation Debt Limits.

Specialized legal support (bond counsel) and independent financial advisors can help you navigate this process and select your best debt options. Make sure to include your policy makers and in-house legal counsel in this process from the very beginning.

In light of the challenges we are facing in response to the COVID-19 pandemic, the agency may want to consult their primary banking partner as to the availability of credit to the agency as part of your existing banking relationship. We are hearing that many in the banking community are unable to prioritize access to resources for local governments which may complicate your efforts. Your financial advisor can provide advice to your agency in this regard as well.

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Local governments are authorized to adopt a policy for disbursement prior to legislative approval (RCW 42.24.180).

But for those entities that do not already have such a policy in place, it may not be possible to adopt such a policy under the current emergency situation. However, RCW 38.52.070(2) authorizes local governments to bypass certain procedural requirements if a local emergency has been declared.

While these procedural requirements are primarily geared toward contracting, purchasing, and budget requirements, the statute also speaks to the appropriation and expenditure of public funds, which would provide authority for the payment of accounts payable associated with normal maintenance and operations expenditures including payroll. This exception will help ensure that essential government operations may continue.

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Local governments have broad powers of authority during an emergency under chapter 38.52 RCW. Additionally, the governor’s office may issue an order to prohibit utility shut offs under the provisions of RCW 43.06.220. Specifically, sub-section (1)(h) states that the governor may issue proclamations prohibiting “[s]uch other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace.”

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Updated March 19 to reflect Proclamation 20-23.15 and the extension of the utility prohibitions through July 31, 2021.

Yes, our topic page on Utility Discounts and Financial Assistance Programs provides legal authority, examples of defining eligibility, and sample codes.

In addition, Governor Inslee issued Proclamation 20-23.2 on April 17, 2020, which has been extended and amended several times. Under the most recent guidance (see Proclamation 20-23.15), which is in effect through July 31, 2021, all energy, water, and telecommunications providers are required to develop COVID-19 Customer Support Programs to address payment plan options for residential customers who are in arrears due to COVID-19, and the utilities are prohibited from:

• Disconnecting residential service due to nonpayment,
• Refusing to reconnect residential customers who were disconnected due to nonpayment,
• Charging late fees or reconnection fees, and
• Disconnecting service to any residential customer who has contacted the utility to request assistance from the utility's COVID-19 Customer Support Program. (For more information on Customer Support Programs, see our blog post Proclamation 20-23.4 Directs Utilities to Develop Customer Support Programs.)

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No. In guidance updated June 17, the U.S. Equal Employment Opportunity Commission (EEOC) says that:

An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

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Updated March 1; updated link to Summit Law mandatory vaccination policy guidance which was updated in February to reflect additional information on the PREP Act and OSHA guidance related to vaccines, as well as some additional clarifications.

Yes, subject to certain restrictions. As we noted in our blog post COVID-19 Vaccinations in the Local Government Workplace (updated January 4, 2021), government-mandated vaccination programs have been upheld by courts. Additionally, employers will need to consider medical accommodations under the Americans with Disabilities Act and religious exemptions under the Civil Rights Act.

The U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance document What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Section K of that document specifically addresses mandatory vaccinations.

Summit Law Group has also put together very helpful Mandatory COVID-19 Vaccination Guidance for Washington Employers that includes a summary of the EEOC guidance.

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Updated April 27 to reflect the fact that local governments are eligible for federal tax credits for any voluntary paid leave provided under the American Rescue Plan Act between April 1, 2021 and September 30, 2021 only.

The federal Families First Coronavirus Response Act (FFCRA) provides for two sources of additional, paid leave for local government employees (as well as many private sector employees).

Public employers were required to provide FFCRA leave between April 1, 2020 and December 31, 2020. This requirement is no longer in effect, but the federal Coronavirus Response Relief Supplemental Appropriations Act (CRRSA), signed into law on December 27, 2020, authorized employers to voluntarily continue providing FFCRA leave through March 31, 2021.

The American Rescue Plan Act (ARPA), signed into law on March 11, 2011, further expanded the use of voluntary FFCRA leave through September 30, 2021. If employers elect to voluntarily extend benefits, ARPA provides the option of 10 additional days of paid leave to employees to be used between April 1, 2021 and September 30, 2021. In addition, it adds additional qualifying reasons for leave related to COVID-19 diagnostic tests and immunizations.

While private employers have been eligible for federal tax credits for FFCRA leave provided to employees all along, state and local governments were ineligible for these tax credits under the original legislation. However, with the passage of the American Rescue Plan, local governments are now eligible for federal tax credits for any voluntary paid leave provided under ARPA between April 1, 2021 and September 30, 2021 only.

For mroe information, see our blog post American Rescue Plan Provides More Relief to Local Governments, as well as the Department of Labor FFCRA FAQs. And this article from JD Supra summarizes the most recent voluntary expansion/extension of FFCRA benefits in more detail.

Summit Law Group has provided a summary of the original law and the Department of Labor (DOL) has helpful information posted on its website. Here are highlights of the original law:

• Emergency Family and Medical Leave Expansion Act. Employees who have been on payroll for 30 days or more are entitled to 12 weeks of Expanded Family and Medical Leave if the employee cannot work due to the need to care for a child because of school closure or unavailability of the childcare provider.
  • The first two weeks (10 days) of expanded family and medical leave are unpaid, but the employee must be allowed to use emergency paid sick leave or other accrued leave for those two weeks.
  • For leave after the initial 10 days, the employer must pay the employee at least 2/3 of their regular pay. Pay is capped at $200/day and $10,000 in the aggregate.
  • Employers may exclude health care providers and emergency responders from coverage.
• Emergency Paid Sick Leave Act. Full-time employees are entitled to up to 80 hours of Emergency Paid Sick Leave; part-time employees are entitled to the number of hours they typically work over a two-week period. This is in addition to any standard sick leave already provided by the employer. All employees are eligible; it does not matter how long they have been employed. An employee is entitled to Emergency Paid Sick Leave only for COVID-19-related reasons, including illness, quarantine/isolation or school closure/childcare provider unavailability due to COVID-19 precautions. The covered reasons for leave are detailed in Summit Law Group’s summary.
  • Employers cannot require employees use other leave prior to using Emergency Paid Sick Leave.
  • If the leave is taken due to the employee’s own health or quarantine/isolation, the employee must be paid their regular rate of pay. Pay is capped at $511/day and $5,110 in the aggregate.
  • If leave is taken for other eligible reasons, the employee must be paid at least 2/3 of their regular rate of pay, but pay may be capped at $200/day and $2,000 in the aggregate.
  • Employers may exclude health care providers and emergency responders from coverage.

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Updated April 27 to reflect the fact that local governments are eligible for federal tax credits for any voluntary paid leave provided under the American Rescue Plan Act between April 1, 2021 and September 30, 2021 only.

FFCRA Leave Requirements.

Through the Families First Coronavirus Response Act (FFCRA), the federal government adopted two new types of paid leave, both of which apply to school closures due to COVID-19 concerns.

The requirement to provide FFCRA leave expired on December 31, 2020, but the federal Coronavirus Response Relief Supplemental Appropriations Act (CRRSA), signed into law on December 27, 2020, authorized employers to voluntarily continue providing FFCRA leave through March 31, 2021.

The American Rescue Plan Act (ARPA) signed on March 11, 2021, further extends the option for an employer to offer voluntary FFCRA leave through September 30, 2021, provides the option of 10 additional days of paid leave to be used between April 1, 2021 and September 30, 2021, and allows local governments to receive federal tax credits for paid leave provided under ARPA during that same time period. (For more information, see our blog post American Rescue Plan Provides More Relief to Local Governments, as well as the Department of Labor FFCRA FAQs.)

Note that, in this new era of remote learning, a school is considered "closed" if the physical location is closed, even if the school is providing online/remote learning. The two types of leave are explored in more detail in our FAQ on the FFCRA and are outlined briefly here:

• Employees are entitled to two paid weeks of emergency paid sick leave for school closures. This is in addition to any standard sick leave already provided by the employer, and employees must be allowed to use this leave before any other accrued leave if desired. When this emergency sick leave is taken for the employee’s personal health or quarantine, it must be paid at 100% of the employee’s regular rate of pay up to certain maximums, but when taken due to school closures employers may (optionally) reduce the benefit to 2/3 of the employee’s regular rate of pay and may cap the pay at $200/day and $2,000 in the aggregate.
• After the first two weeks of leave, employees who have been on payroll for 30 days or more are entitled to 10 weeks of paid "expanded family and medical leave" for school closures. Employers must pay the employee at least 2/3 of the employee’s regular rate of pay. Pay is capped at $200/day and $10,000 in the aggregate.
• Employers were required to provide this leave from April 1, 2020 to December 31, 2020, but FFCRA leave is now optional through September 30, 2021.
• Employers are responsible for paying this additional leave. While private employers have been eligible for federal tax credits for FFCRA leave provided to employees all along, state and local governments were ineligible for these tax credits under the original legislation. However, with the passage of the American Rescue Plan, local governments are now eligible for federal tax credits for any voluntary paid leave provided under ARPA between April 1, 2021 and September 30, 2021 only.

Standard Sick Leave.

• All employers in Washington State are required to provide paid sick leave to non-exempt employees, and RCW 49.46.210(a)(b)(iii) specifically authorizes non-exempt employees to use their sick leave for public health-related school closures. For more information, see L&I’s Paid Sick Leave and Coronavirus (COVID-19) Common Questions.
• State law does not specifically address sick leave for exempt employees, but most agencies provide sick leave to exempt employees. You will need to consult your local policies to see whether public health-related school closures are an allowed use of paid sick leave for exempt employees and, if not, you may want to consider updating your policies.
• Employers may require employees to supplement the federal leave benefits with accrued leave.

Administrative Leave or Other Paid Time Off. Agencies also may allow employees to use other paid time off to care for children who are home due to school closure, subject to local policy. Some agencies have created a new type of leave such as short-term paid "administrative" leave for such situations. With regard to other types of paid leave, the Washington State Attorney General’s Office issued a memorandum (2020) exploring the gift of public funds issue, stating that “given the public health crisis our state is facing, there is a strong basis for state and local governments to make expenditures for the primary purpose of protecting and promoting public health which may have an incidental benefit on private citizens and entities.” To avoid gift of public funds concerns, the agency must authorize these types of paid leave in agency policy.

But not Paid Family and Medical Leave (PFML). The Washington Paid Family and Medical Leave Program (PFML) is not available to employees who are caring for children due to school closures, as that law requires a serious health condition or illness for an employee to be eligible.

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Updated May 21, 2020 with a new link to the EEOC webpage on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Probably yes.

The Americans with Disabilities Act prohibits employers from making disability-related inquiries and requiring medical examinations unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

According to the U.S. Equal Opportunity Employment Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. The EEOC instructs employers that the assessment by the CDC or public health authorities provides the objective evidence needed for a disability-related inquiry or medical examination. During a pandemic, an employer does not have to wait until an employee develops symptoms to ask questions about exposure to a pandemic influenza during recent travel. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home after traveling, an employer may ask an employee what locations they have traveled to, even if the travel was for personal reasons.

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Updated April 10 to clarify the impact of the governor's stay-at-home order.

While the Governor’s "Stay Home, Stay Healthy" Order is in effect, only essential employees can be at the worksite. (For more information, see our blog post Essential Services and Workers During the COVID-19 Emergency.) Once the order has expired, the employer still should follow all CDC recommended practices regarding social distancing and sanitation to minimize employee fears of contracting the virus.

After that, an employer should determine whether the employee has protected leave (such as the need to care for a child at home due to no school) or a health condition that needs to be accommodated (such as an autoimmune disorder or mental health).

If there does not appear to be a valid reason for not coming in, an employer should nevertheless remember the “just cause” standard for imposing employee discipline and consult with its legal counsel prior to taking any action.

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Under normal circumstances, page 2 of the form requires in-person review of the new employee’s documentation, and this typically is done by the employer at the time a new employee starts work. There are some alternatives, however.

First, the Department of Homeland Security recently announced that, due to COVID-19 concerns, remote review and completion of page 2 of the I-9 form may occur when operations at a workplace are being conducted entirely remotely. This option would therefore not be available in situations where some number of essential employees are coming to the workplace. For more on this option, see this article from the Society for Human Resource Management (SHRM), which details the restrictions and limited circumstances under which this option is available.

There is another article from SHRM that addresses other alternatives to having a new employee come to the workplace in person for completion of page 2 of the I-9 form. The article explains that the I-9 document review process need not be conducted by an agency employee and could be undertaken by an individual (possibly even a family member) at the employee’s location. The SHRM contains the following passage:

Under the circumstances raised by COVID-19, USCIS will consider 'any person' even to include a family or household member," said Diane Butler, an attorney in the Seattle office of Davis Wright. "The employer must take steps to ensure that the person understands the obligation and takes the responsibility seriously.

There is also an option for having the verification occur at a “remote completion center” that is established for the purpose of meeting the I-9 verification requirements.

Neither of these options are standard practice for most local governments. If your agency is considering one of these options, it should consult with legal counsel prior to doing so to determine the best path forward.

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Updated March 19 to reflect Governor Inslee's Proclamation 20-19.6, extending the eviction moratorium through June 30, 2021.

UPDATE: On March 18, 2020, Gov. Inslee imposed a 30-day statewide moratorium on residential evictions for non-payment of rent (Proclamation 20-19). These protections have since been modified and extended most recently through 11:59 PM on June 30, 2021 (see Proclamation 20-19.6).

The answer is unclear. The City of Seattle adopted an emergency moratorium, but Seattle has broader authority than most other jurisdictions. In the Seattle eviction proclamation, the mayor cites to the city charter, and city code, as well as the state constitution. In particular, SMC 10.02.020 allows the mayor to proclaim “such other orders as are imminently necessary for the protection of life and property.”

Beyond that, the procedures for evictions are governed by state law and are addressed through the judicial processes in county superior court. While the policy reasons for such an order are understandable, it is not clear, even in an emergency, whether a local government can adopt a measure that would prohibit the use of a judicial process that is otherwise available under state law.

Although first class and code cities under state law have broad powers of local self-government (including emergency management), they do not have authority to take actions that conflict with state law. Landlords may argue that such eviction orders are preempted by the Washington Residential Landlord Tenant Act (chapter 59.18 RCW).

Since eviction is a process governed by state statute, the Governor may be the most appropriate individual to issue an emergency order restricting residential evictions. Jurisdictions considering such measures should consult with their legal counsel.

A local agency, as a landlord, may be able to provide for deferred rent during an emergency if the specific facts warrant it. For example, if the facility in which the tenant’s business is located is closed due to the emergency, then suspending or deferring rent would be an appropriate measure. The broader question of whether rent relief may be provided should be deferred to a time when more is known about the overall impact of the emergency on the tenant’s business.

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Updated August 4 with information about using CARES Act funds for small business grants.

Yes, provided certain rules are followed.

The Washington State Constitution prohibits Gifts of Public Funds “except for the necessary support of the poor and infirm.” There is a related prohibition in the State Constitution on the lending of credit by public entities (also described on the linked webpage).

Based on our understanding of this provision, MRSC has historically advised that financial contributions by local government entities to private businesses, either in the form of a grant or a loan, are generally prohibited. We have also previously advised that there must be a proper public purpose or public benefit resulting from such expenditures beyond providing financial support to a local business. 

However, on March 17, 2020 the Washington Attorney General's Office (AGO) issued a memo to state and local governments clarifying that public funds may be spent “for the primary purpose of protecting and promoting public health which may have an incidental benefit on private citizens and entities.” The AGO provided additional clarification in an April 6, 2020 memo, concluding that, with sufficient safeguards in place, small business "loans or grants are likely permissible if a local government can establish a clear nexus between such programs and either protecting the local economy or promoting compliance with public health guidelines." This provides more flexibility for local governments to assist local businesses.

In addition, local governments are authorized to use their federal CARES Act Coronavirus Relief Fund distributions for small business assistance. For more information, see our blog post CARES Act Funds Can Be Used for Small Business Grants.

We recommend discussing any proposal related to financial assistance with your legal counsel. In addition, both the state and federal governments have either introduced or adopted significant measures intended to provide economic relief to small businesses.

For more on these new measures and what local governments can do to support local businesses, see MRSC’s webpage on COVID-19 Small Business and Tenant Assistance Programs.

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